Woman On The No-Fly List Arrested At Airport Gets 2nd Chance To Clear
Name

NEWSROOM

Woman On The No-Fly
List Arrested At Airport Gets 2nd Chance To Clear Name

By
Jim Douglas

February 12, 2012 - Rahinah Ibrahim, a citizen of
Malaysia and mother of four children was legally in the
United States from 2001 to 2005 as a Ph.D. student in
Construction Engineering and Management under a student
visa at Stanford University. She alleges that the U.S.
government has mistakenly placed her on the “No-Fly
List” and other terrorist watchlists.

On
January 2, 2005, she attempted to travel to a Stanford
sponsored conference in Malaysia where she was to
present her doctoral research. She was prevented from
flying and was detained in a holding cell for two hours
at the San Francisco airport. She was allowed to fly to
Malaysia the next day, but she was prevented from
returning to the United States after the conference.
Ibrahim has not been permitted to return to the United
States.

Ibrahim brought suit in federal district court (D.C.
No.3:06-cv-00545-WHA Ibrahim v. DHS) seeking, among
other things, injunctive relief under the First and
Fifth Amendments, with the ultimate aim of having her
name removed from the government’s watchlists. The
district court denied injunctive relief, in its view
Ibrahim was not a citizen of the United States, hence
did not have a right to file a suite.

Ibrahim
appealed her case before the 9th U.S. Circuit Court of Appeals
(Case #06-16727 Rahinah Ibrahim v. Department of Homeland
Security) (see
opening
aruments). On Wednesday the court reversed and remands the
case for further proceedings, allowing her to continue her
lawsuit against the U.S. Department of Homeland Security and the
FBI.

Circuit
Court of Appeals Judge William Fletcher wrote, "She has
established a substantial voluntary connection with the United
States through her Ph.D. studies at a distinguished American
university, and she wishes to maintain that connection."

Marwa
Elzankaly, an attorney for Ibrahim said, "We're very excited
about this ruling. The 9th Circuit has confirmed Ms. Ibrahim's
right to be heard and to challenge the placement of her name on
any government watchlist." Below is a summary of the case
history:

On January
2, 2005, Ibrahim attempted to fly to Kuala Lumpur, Malaysia, to
present the results of her doctoral research at a
Stanford-sponsored conference. She arrived at the San Francisco
airport at about 7 a.m. for a 9 a.m. flight, accompanied by her
14-year old daughter and a friend.

She requested
wheelchair assistance to the gate because she was recovering from
medical complications from a hysterectomy. When Ibrahim tried to check
in at the ticket counter, a United Airlines employee discovered her name
on the federal government’s No-Fly List. Instead of issuing her a
boarding pass, the employee called the San Francisco police.

When San Francisco
police officers arrived, they called the Transportation Security
Operations Center, a division of the federal Transportation Security
Agency (“TSA”). A federal contractor employed by US Investigation
Services, Inc., John Bondanella, answered the call. Bondanella told the
police to prevent Ibrahim from flying, to contact the FBI, and to detain
Ibrahim for questioning.

At 8:45 a.m.,
fifteen minutes before her flight was scheduled to leave, San Francisco
police officers handcuffed Ibrahim. They took her to a police station in
the airport, searched her, and locked her in a holding cell. No one
explained to Ibrahim why she had been arrested and detained. After about
two hours, the FBI requested that the officers release her. Ibrahim was
told by an unspecified person that her name no longer appeared on the
No-Fly List.

The next day,
Ibrahim went to the San Francisco airport to catch a different flight.
An unspecified person told her that she was again (or still) on the
No-Fly List. She was nonetheless allowed to fly to the
Stanford-sponsored conference in Malaysia. She was subjected to enhanced
screening at the San Francisco airport and at all stops en route to
Kuala Lumpur.

Ibrahim was
scheduled to return to Stanford to complete work on her Ph.D. on March
10. But when she arrived at the Kuala Lumpur airport, she was told by a
ticketing agent that she would have to wait for clearance from the
United States Embassy before she could board. Another ticketing agent
told her that a note by her name instructed airport personnel to call
the police and have her arrested. Ibrahim was not arrested but was
prevented from boarding her scheduled return flight. She has never been
permitted to return to the United States.

On March 24, 2005,
Ibrahim submitted a request through TSA’s “Passenger Identity
Verification” program to clear her name. TSA failed to respond for
approximately one year, and only did so after Ibrahim filed this suit.
In a form letter, TSA responded to Ibrahim’s request by explaining that
“[if] it has been determined that a correction to records is warranted,
these records have been modified.” The letter did not state whether
Ibrahim was, or was not, on the No-Fly List or other terrorist
watchlists.

On April 14, 2005,
an American consul in Malaysia sent Ibrahim a letter informing her that
the Department of State had revoked her student visa on January 31,
2005, a month after her departure from the United States. The letter
cited Ibrahim’s “possible ineligibility” under § 212(a)(3)(B) of the
Immigration & Nationality Act (INA) as the reason for the revocation.

That section of
the INA provides, among other things, that “[a]ny alien” (1) who “has
engaged in terrorist activity”; (2) who “a consular officer, the
Attorney General, or the Secretary of Homeland Security knows, or has
reasonable ground to believe, is engaged in or is likely to engage after
entry in any terrorist activity”; or (3) who “has, under circumstances
indicating an intention to cause death or serious bodily harm, incited
terrorist activity,” is inadmissible to the United States.

The letter further
stated that revocation of Ibrahim’s visa did “not necessarily indicate
that [she was] ineligible to receive a U.S. visa in the future.” “That
determination,” the letter continued, “can only be made at such time as
you apply for a new visa.”

Ibrahim applied
for a new visa after she filed this lawsuit. The Department of State
denied her application on December 14, 2009, during the pendency of this
appeal. In a form letter with a series of boxes, a consular officer
marked a box indicating that INA § 212(a)(3)(B) formed the basis of the
denial of her visa. The letter did not explain how the consular officer
arrived at his determination that she was suspected of terrorist
activities.

Ibrahim’s
inability to return to the United States has limited her academic and
professional activities. She currently participates in a long-term
project with Stanford to improve Malaysia’s construction industry. If
she were not prevented from doing so, she would return to Stanford once
a year to work on the project. The Malaysian university where Ibrahim
currently teaches participated in a summer program at Stanford’s Center
for Integrated Facility Engineering. Although Ibrahim was her school’s
representative to Stanford, she was unable to participate in the
program.

Since the
terrorist attacks of September 11, 2001, the federal government has
assembled a vast, multi-agency, counterterrorism bureaucracy that tracks
hundreds of thousands of individuals. At the heart of this bureaucracy
is the Terrorist Screening Center (“TSC”). Established by the Attorney
General in 2003 pursuant to a presidential directive, the mission of TSC
is “to consolidate the Government’s approach to terrorism screening and
provide for the appropriate and lawful use of Terrorist Information in
screening processes.”

TSC manages the
Terrorist Screening Database (“TSDB”), the federal government’s
centralized watchlist of known and suspected terrorists. The National
Counterterrorism Center nominates known and suspected international
terrorists to the TSDB, while the FBI nominates known and suspected
domestic terrorists. TSC distributes subsets of the TSDB to other
federal agencies to help implement the government’s counterterrorism
initiatives.

TSA uses two
subsets of the TSDB, the No-Fly List and the Selectee List to screen
airline passengers. Individuals on the No-Fly List are prohibited from
boarding American carriers or any flight having virtually any contact
with U.S territory or airspace. Individuals on the Selectee List are
subject to enhanced security screening before boarding an airplane. The
State Department uses a subset of the TSDB to screen visa applicants
through the Consular Lookout and Support System.

The evidence and
procedures used to nominate individuals to the TSDB are kept secret from
the general public, as are the names of those in the TSDB. However,
thousands of front line law enforcement officers from federal, state,
local, territorial, and tribal agencies have access to the TSDB

Since its
inception, the TSDB has grown by more than 700%, from about 158,000
records in June 2004 to over 1.1 million records in May 2009. In 2007,
these records contained information on approximately 400,000
individuals. As of 2007, the TSDB was increasing at a rate of 20,000
records per month. TSC makes 400 to 1200 changes to the TSDB every day.
It is the “world’s most comprehensive and widely shared database of
terrorist identities.”

In theory, only
individuals who pose a threat to civil aviation are put on the No-Fly
and Selectee Lists, but the Justice Department has criticized TSC for
its “weak quality assurance process.”

In July 2006 after the
events that gave rise to this lawsuit there were 71,872 records in the
No-Fly List. After an internal review, TSC downgraded 22,412 records
from the No-Fly List to the Selectee List and deleted entirely an
additional 5,086 records. By January 2007, the TSC had cut the No-Fly
List by more than half, to 34,230 records.

Tens of thousands
of travelers have been misidentified because of misspellings and
transcription errors in the nomination process, and because of computer
algorithms that imperfectly match travelers against the names on the
list. TSA maintains a list of approximately 30,000 individuals who are
commonly confused with those on the No-Fly lists. One major air carrier
reported that it encountered 9,000 erroneous terrorist watchlist matches
every day during April 2008.

When Ibrahim filed
suit, TSA managed a Passenger Identity Verification program for
travelers who believed that they were mistakenly put on the No-Fly or
Selectee List. In place of that program, the Department of Homeland
Security (“DHS”) now manages the Traveler Redress Inquiry Program
(“TRIP”). A 2007 Department of Justice audit commended TSC for
accurately resolving redress queries, but noted that 45% of the reviewed
records contained an error. The 2009 DHS report was less charitable,
concluding that the “TRIP website advises travelers that the program can
assist them with resolving a range of travel difficulties which has been
determined to be an overstatement.

On January 27,
2006, Ibrahim filed suit against DHS, TSA, TSC, the FBI, the Federal
Aviation Administration (“FAA”), andindividuals
associatedwiththeseentities(collectively, “the federal defendants”); the City and County of
San Francisco, the San Francisco Police Department, the San Francisco
Airport, the County of San Mateo, and individuals associated with these
entities (collectively, “the city defendants”); and United Airlines, UAL
corporation, and individuals associated with these entities
(collectively, “the private defendants”).

Ibrahim asserted
claims and state-law tort claims arising out of her detention at the San
Francisco airport, as well as several constitutional claims based on the
inclusion of her name on government terrorist watchlists. The district
court dismissed her claims against the federal defendants.The
appeals court reversed that decision in part the district court’s
dismissal of the federal defendants. The court heldthat§ 46110(a)
requires all challenges to TSA’s policies and procedures implementing
the No-Fly and other lists to be filed directly in the court of appeals.

After remand,
Ibrahim filed a Second Amended Complaint (“SAC”). In Claim 13 of her
SAC, Ibrahim asserted several causes of action against the remaining
federal defendants. Ibrahim alleges in her claim that the inclusion of
her name on the government’s terrorist watchlists violates her First
Amendment right to freedom of association and her Fifth Amendment rights
to due process and equal protection.

She also alleges
that the federal defendants violated the Administrative Procedure Act
(“APA”), which was construe by the court as an allegation that the APA
waives the sovereign immunity of the United States, thereby allowing her
claims under the First and Fifth Amendments and authorizing remedies for
those claims. Ibrahim asks for an injunction that would require the
government to take her name off its terrorist watch lists, including the
No-Fly List, or, in the alternative, to provide procedures under which
she could challenge her inclusion on those lists.

The federal
defendants moved to dismiss her claim for lack of standing and for
failure to state a claim upon which relief can be granted. The
government contended that Ibrahim has no standing under Article III of
the Constitution. The government contended, further, that Ibrahim has no
right to assert claims under the First and Fifth Amendments because she
is an alien who has voluntarily left the United States.

The district court
held that Ibrahim has standing. The district court speculated that
Ibrahim’s inclusion in the No-Fly List might be a “monumental mistake,”
but nonetheless dismissed the claim holding that Ibrahim was “an alien
who voluntarily left the United States and thus left her constitutional
rights at the water’s edge.”

The Supreme Court has held in a series of cases that the
border of the United States is not a clear line that
separates aliens who may bring constitutional challenges
from those who may not. For example, a resident alien
who voluntarily leaves the United States on a brief trip
with intent to return is constitutionally entitled to a
due process hearing if the government seeks to exclude
her upon return to the United States.